State ex rel. Pryor v. Anderson

• Decision Date: 20 December 1938
• Citation: 123 S.W.2d 181,343 Mo. 895
• Parties: State of Missouri at the relation of Lola Alice Pryor, Relatrix, v. B. L. Anderson, Judge of the Probate Court of Lewis County
• Court: Missouri Supreme Court

123 S.W.2d 181

343 Mo. 895

State of Missouri at the relation of Lola Alice Pryor, Relatrix, v. B. L. Anderson, Judge of the Probate Court of Lewis County

Supreme Court of Missouri

December 20, 1938

Writ quashed.

Rendlen White & Rendlen for relatrix.

(1) Mandamus the proper and only remedy afforded in a situation such as is presented here. Had the probate court removed the improvidently appointed public administrator, the improperly appointed administrator so removed could appeal, but when the probate court refused to remove such administrator and fails to follow the provisions of Section 8, Revised Statutes 1929 and wait the thirty-five (35) days period therein provided before making such appointment, a writ of mandamus is the only remedy afforded. State ex rel. Fansher v Quinotte, 227 Mo.App. 902, 58 S.W.2d 1005; State ex rel. Mitchell v. Quinotte, 133 Mo.App. 399, 86 S.W. 884; State ex rel. Pinger v. Reynolds, 121 Mo.App. 699; State ex rel. Grover v. Fowler, 108 Mo. 465. Cases where appeal lies are where the administrator has been removed in such a case -- the removed administrator can appeal. In re Wilson, 16 S.W.2d 737; In re Allen's Estate, 307 Mo. 674, 291 S.W. 755. (2) Probate courts in Missouri have no inherent powers, they only possess those powers conferred by statute and can exercise their jurisdiction only in the manner prescribed by statute. St. Louis v. Hollrah, 175 Mo. 85; State ex rel v. Holtcamp, 14 S.W.2d 650; Peck v. Fillingham's Est., 202 S.W. 465, 199 Mo.App. 277. (3) "The enumeration of the conditions set forth in the statute authorizing public administrator to take charge of estates of deceased persons is an implied exclusion of all others. . . . His authority to act must be found within the terms of the statute." Troll v. Landgraf, 183 Mo.App. 253; McCabe v. Lewis, 76 Mo. 303.

Walter M. Hilbert for respondent.

(1) Letters testamentary or of administration may at any time be granted to any person deemed suitable, if the person or persons entitled to preference file their renunciation thereof, in writing, with the clerk of the court, or if proof be made that no such persons reside in this State. Sec. 9, R. S. 1929. (2) It shall be the duty of the public administrator to take into his charge and custody the estates of all deceased persons in the following cases; fifth, where any estate of any person who dies intestate therein, or elsewhere, is left in the county liable to be injured, wasted or lost, when said intestate does not leave a known husband, widow or heirs in this State; ninth, where for any other good cause said court shall order him to take possession of any estate to prevent its being injured, wasted, purloined or lost. Sec. 299, R. S. 1929; Hollingsworth v. Jeffries, 121 Mo.App. 660; Dunn v. Bank, 109 Mo. 90. (3) Letters testamentary or of administration shall in no case be granted to a nonresident of this State. Sec. 10, R. S. 1929. (4) In case of the death of an insane person while under guardianship, the power of the guardian shall cease and the guardian shall immediately settle his accounts and deliver the estate and effects of his ward to his personal representative. Sec. 495, R. S. 1929. (5) Sections 7, 8 and 9 should be construed together so as to give effect to each. In re Wilson's Estate, 16 S.W.2d 738. (6) Mandamus will not lie to direct a course of judicial action. State ex rel. v. McElhinney, 246 Mo. 44. (7) Mandamus will not lie against a probate judge who finds that one has waived her right to administer. State ex rel. v. Nortoni, 191 S.W. 429.

Bohling, C. Cooley, and Westhues, CC., concur.

OPINION

BOHLING

Mandamus -- on certification from the St. Louis Court of Appeals (see State ex rel. v. Anderson (Mo App.), 112 S.W.2d 857, for opinion of the Court of Appeals), one of the judges of that court being of opinion the decision was contrary to the decision of this court in Cross v. Mullins, 307 Mo. 674, 271 S.W. 755.

The case involves the jurisdiction of respondent probate judge under the statutory law of this State to appoint an administrator of an intestate's estate having no resident distributee. The facts and the law are developed in detail in the opinion of the Court of Appeals and need not be set forth again. The material provisions (Secs. 6-10, R. S. 1929, Mo. Stat. Ann., pp. 8-12) are to the following effect:

"Letters of administration shall be granted: First, to the husband or wife; secondly, to those who are entitled to distribution of the estate, or one or more of them; . . ." provided if the court, or judge in vacation, believe no one of such persons to be competent and suitable, some other person may be appointed. Section 7. If no person entitled to preference under Section 7 apply "within thirty days after the death of the deceased" or appears and qualifies "for administration" within the time appointed (not less than five days) in a citation thereafter issued, letters may be granted to any person deemed most suitable (Sec. 8), or "letters . . . of administration may at any time be granted to any person deemed suitable, if the person or persons entitled to preference file their renunciation thereof, in writing, with the clerk of the court, or if proof be made that no such persons reside in this state" (Sec. 9). "Letters testamentary and of administration shall in no case be granted to a nonresident of this state . . ." (Sec. 10); ". . . and no male or female person under twenty-one years of age . . . shall be executor or administrator . . ." (Sec. 6).

Relatrix, a nonresident distributee (niece of deceased) of intestate's estate as of the date of the appointment of the administrator but who thereafter took up a residence in this State with the view of becoming administratrix (consult Stevens v. Larwill, 110 Mo.App. 140, 154-156, 84 S.W. 113, 117, 118), presents the contention that the appointment of a stranger to the estate as administrator prior to the lapse of the time prescribed by Section 8, upon a showing, under Section 9, that all persons entitled to preference under Section 7 to administer are nonresidents of this State, is without the statutory authority conferred upon respondent probate judge in the absence of a filing of the renunciations under said Section 9 of such nonresident distributees as would have been entitled to preference under said Section 7 had they been residents of this State.

The opinion of the Court of Appeals held the appointment of an administrator in the circumstances was warranted under Section 9, supra. Relatrix's contention is faulty in that it recognizes the propriety of appointing an administrator "at any time" in instances wherein those entitled to preference under Section 7, proceeding under Section 9, "file their renunciation thereof, in writing with the...